SC: Ex post facto environmental clearance is impermissible; industries to pay ₹10 crore each instead of closure
Case Name: Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors. (with connected appeals)
Citation: Civil Appeal No. 1526 of 2016; with C.A. No. 3175 of 2016; C.A. Nos. 6604–6605 of 2016; and C.A. No. 1555 of 2017
Date of Judgment: 1 April 2020
Bench: Dr. Justice D.Y. Chandrachud, Ajay Rastogi.
Held: The Supreme Court held that the Environmental Impact Assessment (EIA) Notification of 27 January 1994 mandated a prior environmental clearance (EC); the concept of an ex post facto EC is alien to environmental jurisprudence and contrary to the precautionary principle. The Union’s administrative circular dated 14 May 2002 permitting ex post facto ECs could not dilute a statutory notification. Although the National Green Tribunal (NGT) could not strike down rules/regulations in appellate jurisdiction, it could test the validity of such an administrative circular. However, the NGT’s directions revoking ECs and ordering plant closures were disproportionate; a balanced remedy was required that accounts for subsequent compliances yet penalizes past violations.
Summary: Industrial units at Ankleshwar (Gujarat) had commenced/expanded operations without obtaining prior ECs required under the 1994 EIA regime; later, they obtained ECs (and further expansions) after public processes. The NGT invalidated the 2002 MoEF circular enabling ex post facto clearances and ordered revocation of ECs, closures, and ₹10-lakh compensation per unit. On appeal, the Supreme Court reaffirmed that the 1994 EIA Notification’s phrase “shall not be undertaken… unless” requires a prior EC; later consents/clearances or technological upgrades cannot retrospectively cure the violation. The Court rejected reliance on exemptions and clarified that consents under the Air/Water/Hazardous Waste laws are distinct from an EC that follows screening, scoping, appraisal, and (post-1997) public hearing. At the remedial stage, invoking proportionality and sustainable development, the Court declined blanket closure (given later ECs, ongoing operations, investment, and employment), but emphasized restitution for environmental harm in a critically polluted cluster.
Decision: Appeals partly allowed: the finding that ex post facto ECs are impermissible is affirmed; the NGT’s orders revoking ECs and directing closures are set aside. In exercise of Article 142, each appellant-industry is directed to deposit ₹10 crore with the Gujarat Pollution Control Board within four months for environmental restoration in the area. ECs already granted continue to operate; no order as to costs.